Scalia’s Originalism Notes for February 20

Main points

Scalia’s originalism is a doctrine about how judges ought to interpret statutes and the constitution. It holds that judges should interpret these things according to their original meaning. It is distinct from:

1. Original intent: the view that judges ought to interpret statutes and the constitution according to how their authors intended them to be. Scalia’s originalism does not give any weight to legislators’ intentions; it concerns what the words of the statutes or constitution meant to the citizens and legislators of the time. They are the people to whom the laws and constitution were addressed.
2. Strict constructionism: the view that judges ought to interpret statutes and the constitution by looking only at their words. Scalia’s originalism involves looking at historical evidence concerning what statutes meant in addition to their words alone.
3. Living constitution: the view that judges ought to interpret the constitution (and perhaps statutes) according to their current meaning. Since each time period has its own “current” moment, that means that the proper interpretation of the constitution changes over time. Scalia’s originalism only looks for the constitution’s original meaning.

Judicial legislation

Many of the authors we are going to read take it for granted that judicial legislation is a bad thing. It isn’t obvious to me that this is necessarily so. In Hart’s case of the law prohibiting vehicles in the park, what’s so bad about settling exactly what counts as a vehicle through the courts? That would be a kind of judicial legislation: the courts would be the ones to settle that, say, rickshaws aren’t allowed in the park and that looks close enough to ‘making law’.

Maybe that’s better than forcing the legislature to revisit the law time and again, adding new qualifications each time out. Maybe it’s worse. All I’m saying is that the label “judicial legislation” doesn’t settle anything.

Scalia argues that judicial legislation is undemocratic. That looks plausible enough, given that judges aren’t elected. But even a democracy may turn to unelected officials in order to work efficiently. Again, maybe they would rather have the courts iron out the details than clogging the legislature with them.

Of course, Scalia may say that many of the cases he’s talking about concern significant areas of social policy. He’s probably right to say that there’s nothing about the training that judges receive or the way they are selected that ensures they’re particularly skilled at setting social policy. Legislators have no particular training or, arguably, expertise, at all. But at least they’re elected. So he is also probably right to suggest that doing that is less democratic than setting social policy through an elected legislature.

All I want is some arguments for these conclusions. I think that is what’s really at issue, not abstract theories of interpretation.

Not that anyone asked me, of course.

More reading!

Our next author is Ronald Dworkin. Thanks to Jose, we have an article on reserve by the very very sharp Cass Sunstein. It covers Dworkin’s legal philosophy and touches on its relationship to Scalia’s. The article is clearly written and brief, so I think you’ll enjoy it.

If you’re really into this, you can read a debate between Sunstein and an “originalist” law professor on the Legal Affairs website.

Here’s the article from today’s LA Times that I referred to in class.

Finally, I have it on good authority that George Bush calls Justice Scalia “Antonio”.